Bigamy: Statutory Provisions and Judicial Findings By Meghna D. Dhanwani

What is bigamy?

Bigamy is a term used when a person who is legally married, enters into another marriage. In simple terms, it means that a person marrying twice in existence of his/her prior marriage. Polygamy and bigamy are two different words as the former means getting married several times and the later means to get married twice. Bigamy can be intentional or unintentional, such as marrying even during the presence of the first spouse or unintentional such as entering into a marriage during the process of divorce. This kind of act is generally considered as illegal in many countries, except a few such as Egypt, Libya, Kenya, etc. (With a few exceptions.). Bigamy does not apply to couples who are in a cohabitation relationship and so a couple in such a relationship can marry anyone they shall will to.

Bigamy under Indian law

In India bigamy is an illegal criminal offense. India is a diversified country respects and considers the customs of every religion in the field of law. Initially, religion also plays an important part in the question of bigamy. Various religions have varying rules and views on marriage, including bigamy and polygamy that are considered in Indian law. When the Indian Penal Code in 1860 was introduced, it bought many provisions and, until then bigamy and polygamy were tackling issues under their own personal laws in every religion. The Indian
Penal Code contained two major sections in regard to polygamy or bigamy, Section 494 and 495. Section 494 applies when the person entering into the bigamous act does not conceal the fact about his/her prior marriage to their second spouse while Section 495 applies when the person remarrying conceals the fact of their first marriage to their spouse and keeps it a secret.
 A man, married or unmarried can be prosecuted for adultery when he is in a relationship with a married woman.
 A woman, married or unmarried in a relationship with another married man cannot be prosecuted for adultery.
 A married man in a relationship with an unmarried woman is not considered as an offense committed by the man. It similarly applies to women. [1] Even though there are restrictions and laws against bigamy there are still cases where the first wives find difficulties to prove evidences about their husband’s second marriages as most of them take place in religious places.

Section 494, IPC 1860

The remarriage of a person during the lifetime of their first husband or wife to whom they are legally married, then the subsequent marriage will be considered void in the eyes of law. The main aim of this section is to prohibit remarriages, and it applies to both men and women
equally. This provision shall be applicable only if the first spouse is living and their marriage is legally binding. The court also takes into consideration that the remarriage should actually be a marriage in the eyes of law only then shall it be considered under Section 494. These sections of bigamy will be applicable only if the family law of the person entering bigamy considers it as void.

There are certain exceptions to this provision, situations where the provision shall not be applicable, they are;
 If a person’s first marriage has been declared void by the court of competent jurisdiction, the remarriage shall not be considered bigamous and will not occur under this provision.
 If during the time of the subsequent marriage his/her first spouse has been continuously missing and not been heard of since seven years or more, the provision shall not be applicable. And in such case the second spouse must be aware of the first marriage before remarriage, under any circumstances it must not be kept unknown.
 If it proves to the court that the former marriage was non-existent, then it shall not be considered under this section. According to section 50 of the Indian Evidence Act, 1872 no offense in regard to a marriage can be established if the fact of marriage is not proven. The courts apply this rule in the cases of bigamy under IPC; without satisfactory proof of former marriage, Section 494 cannot be applied. The first marriage can be proved by presumptive and circumstantial evidence.
 The second marriage that attracts section 494 also needs proof to the satisfaction of the court such as reference to proper solemnization. And if the marriage was not properly solemnized with rites and rituals, as per the personal or customary laws applicable to the parties, it shall not be considered as a marriage and it would remain out of this section.Absence of proof of marital rites, the relationship will be tagged as “an adulterous union.”

Courts have specifically clarified in certain cases that intention is an essential part of constituting an offense under this section. And so if a person remarrying in good faith and without any criminal intent, the provision may not apply under section 494. After, a second bigamous marriage, if the former marriage is legally dissolved by death or divorce, then too this section may not be applicable. [2]

An important question in view of bigamy law is that, if a person merely attending a bigamous marriage or being involved is liable to punishment in the eyes of law? The answer to which is no, the person is not liable to anything.

The exception under section 494, regarding the spouse being continuously unknown for seven years is described from section 108 of the Evidence Act where if a spouse has been unknown for seven years continuously, it shall be treated as a factor presuming of death of such a spouse which is also a basis for divorce under the Special Marriage Act and the Hindu Marriage Act. [3]

Punishment

The punishment provided under section 494 IPC can be sentenced to a maximum seven years of imprisonment or fine or both. The offenses under this section are non-cognizable, bailable and compoundable, and the prosecution can be initiated only through an official complaint. The cases are triable by the Magistrate of the first class.

Who can file a complaint?

The person aggrieved by the offense can file a complaint under section 494. Any other person except the aggrieved person can file a complaint, which will be accepted when the aggrieved person is a minor, i.e., below the age of eighteen, or sick or an unsound person. And in such case, the parents of the aggrieved person, brother, sister, uncle, aunt or children can file a complaint without a prior permission of the court. But if other relatives file a complaint then a prior permission from the court is essential. [4]

Section 495, Indian Penal Code, 1860

This section could also be considered as a special provision under Section 494, as both the provisions are in reference to bigamy and all the provisions of Section 494 are applicable to Section 495 also. But the difference being that this section deals with cases during which the person remarrying conceals the actual fact of first marriage to his/her second spouse. A complaint of cheating may also be filed under this
section, because it defines cheating as, fraudulently or dishonestly inducing the person so deceived to try and do or omit to try and do anything which he wouldn’t do or omit if he weren’t so deceived. But such an act must be proven to the court that it did certain harm to the person in any form.

Punishment

As all the principles of section 494 are similar within the section 495 also, the difference may dwell in the punishment sentenced in case of section 495, the utmost sentence given by the court may exceed to 10 years or fine or both. This section is non- cognizable, bailable, and non-compoundable, the prosecution is additionally started only through an official complaint. The procedure of complaint remains almost like that of the Section 494. The helpers or the people involved in such bigamous marriages under Section 495, where the reality has been hidden, are often susceptible to punishment as abettors under section 109 of IPC. Generally there are three places for inquiry and trial to start place under Sections 494 and 495, as consistent with and specified under Section 182 (2) of Criminal Procedure Code 1973, which is, the court within whose local jurisdiction; 1) the offense was committed, 2) the offender last resided with his/her spouse of first marriage, 3) the wife of the primary marriage has resided permanent residence after the commission of the offense. [5]

Section 17 under the Hindu Marriage Act, 1955

When the Hindu Marriage Act was commenced, it ensured to mention that in a valid marriage neither of the persons must have a spouse already living and with whom their marriage has been legalized. In earlier days, there were no restrictions for men as for monogamy and the women were not allowed to remarry, but later monogamy was introduced in order to prevent bigamy. After 1955, under the Hindu Marriage Act, second marriages were declared void. It was also made a rule that the wedding must be performed ritually and should be legalized for the first marriage to be valid. According to the Section 17, if any marriage of Hindus including Jains, Buddhists or Sikhs was solemnized after the commencement of this act it shall be considered as null and void, if at the date of marriage either of the persons have a living spouse, and thus the provisions of Sections 494 and 495 of the Indian Penal Code 1860 shall apply. [6]

History

During the time when Hindus, Jains, Buddhists and Sikhs were governed by their religions and customary laws, polygamy was accepted and was not treated as void. But polyandry at the same time was considered against the rules, while Jews and Parsis did not specifically deny polygamy. As to Muslims the section 494 and 495 is not applicable until the man remarries for the fifth time and a woman remarries second time, also the Islamic law must be thoroughly considered for it to be void or applicable. In 1865 Parsis were the first community to prohibit bigamy and later the laws enacted for Christians during 1869 and 1872 considered bigamy as void too. After the independence the Hindu
Marriage Act, 1955 completely declared bigamy to be void for all. The present position of various religious communities in regard to section 494 and 495:
 Hindus, Buddhists, Sikhs and Jains: People governed under these communities involving in cases of bigamy (also polygamy and polyandry) attract the application of sections 494 and 495, IPC.
 Scheduled tribes under Hindus, Buddhists, Sikhs and Jains: As they exempt from the Hindu Marriage Act, 1955, bigamy not applied by their customs does not attract the section of IPC.
 Christians and Parsis: All people belonging to this community across India attract provisions of bigamy under the Sections 494 and 495 IPC.
 Jews: As polyandry was never permitted by them and the modern Jewish laws prohibit polygyny as well, all the bigamy provisions apply to them as well.
 Muslims: Polygyny (i.e., a husband marrying four wives) to an extent is accepted under Muslim laws, but polyandry (bigamy by women) attracts the application of the IPC laws.
 Persons in civil marriages: Couples irrespective of religion or community married according to the law do attract the application of bigamous laws. [7]

Bigamy in Goa however, has certain different rules such as, bigamous acts of a Muslim man married under the registration of Goa will be considered illegal and polygamy may be legalized if the wife of first married spouse cannot give birth to a child after reaching her 25 years of age and also when she is not able to give birth to a male child until attaining her 30 years of age. [8]

There has been many questions relating to the laws of bigamy in India and one such important question is that, if a man of any religion already married converts himself to Islamic religion, then will the bigamy laws apply to him if he remarries without dissolving the first marriage? And can he be charged under Section 494 of IPC?
The answer to this was gained in the case, Sarla Mudgal, President, Kalyani v. Union of India, AIR 1995 SC 1531.

The answers gained were:
1. If a spouse converts his/her religious belief, then they shall not force their beliefs and personal laws onto the other. Such a practice would be considered unlawful in the eyes of law.
2. If the first marriage is conducted according to and under The Hindu Marriage Act, then the conversion is not to be considered until the first marriage is legally void or a divorce has been obtained. If not the conversion and remarriage will still be considered unlawful.

3. There will be a wholesome effect of section 11 and section 17 of The Hindu Marriage Act. So, the remarriage will be considered void and taken under section 494 or 495 of IPC.
4. The second marriage cannot be considered as a legal marriage if the husband has converted his religion to Islam during the life of his first spouse, as the first marriage was bound under the Hindu Marriage Act and will continue to be regarded under the same provisions.
5. In case a spouse converts to another religion after the marriage, then the court will make decisions according to justice, equality and good conscience, and there will be no effect of personal laws.

Hence, irrespective of the fact that one spouse converts themselves to another religion, the married persons will remain to be governed under the provisions of personal law, under which they were initially married. So, the spouse cannot escape the provisions of section 494 or 495 IPC merely because of conversion of their religion after their first marriage, to their benefits, and will be liable in case of remarriage under criminal act of committing bigamy. [9]

Conclusion

In the cases of bigamy, the second spouses are also an important aspect, due to the act of bigamy they face various issues and are usually degraded in the society. They experience pain and go through issues mentally as well, such as depression. A woman faces major problems as in most of the cases they are the usual victims, being second wife one does not get any recognition, her children are known to be illegitimate and she takes up all their responsibility alone. But the law does take them to some consideration as well and they do have a benefit of getting maintenance, which in general is dependent on the discretion of the judges.
Though bigamy is a criminal offense, it yet has a loophole, the major one being the exceptions to the sections 494 and 495 of IPC, such as the bigamous marriage must be ritually and rightfully performed to be proven. Usually, such loopholes are exploited by men to defend themselves. If offenses under this section are made cognizable, non-bail able and non-compoundable, the intention of the laws might be seen more effectively.
Quick and convenient procedures for these matrimonial cases, civil or criminal should be provided for faster judgments which indeed can be done through setting up family courts throughout the country under the provisions of the Family Courts Act, 1984, as India is a country where even now lakhs of women, even under-aged girls get cheated into bigamous marriages. With such contrary ideas it is essential that lawmakers are more persistent and clear on their ideas to protect the rights of women for those who are cheated into second marriages and must ensure fairness and effectiveness in their intentions towards the society.

Footnotes

1 Mohd Aqib Aslam, Bigamy: Statutory Provisions and Judicial Findings On Bigamy, Legal Service India.com,
(Apr.,03, 2020), http://www.legalserviceindia.com/legal/article-1864-bigamy-statutory-provisions-and-judicial-
findings-on-bigamy.html .

2 Kiran B. Jain, Vice Of Bigamy And Indian Penal Code : Ramifications Of An Archaic Law, Journal of the Indian Law
Institute, Vol. 32, No. 3, JSTOR, pp. 386-399, (1990).

3 Kiran B. Jain, Vice Of Bigamy And Indian Penal Code : Ramifications Of An Archaic Law, Journal of the Indian Law
Institute, Vol. 32, No. 3, JSTOR, pp. 386-399, (1990).

4 Subodh Asthana, Bigamy in India, ipleaders.in, (Aug., 3, 2019), https://blog.ipleaders.in/bigamy-india/.

5 Kiran B. Jain, Vice Of Bigamy And Indian Penal Code : Ramifications Of An Archaic Law, Journal of the Indian Law
Institute, Vol. 32, No. 3, JSTOR, pp. 386-399, (1990).

6 SM, Bigamy [S.494 IPC, S.17 Hindu Marriage Act], SCConline.com, (Oct., 19, 2016),
https://www.scconline.com/blog/post/2016/10/19/law-for-laymen-s-494-ipc-bigamy/

7 Kiran B. Jain, Vice Of Bigamy And Indian Penal Code : Ramifications Of An Archaic Law, Journal of the Indian Law
Institute, Vol. 32, No. 3, JSTOR, pp. 386-399, (1990).

8 Subodh Asthana, Bigamy in India, ipleaders.in, (Aug., 3, 2019), https://blog.ipleaders.in/bigamy-india/

9 Mohd Aqib Aslam, Bigamy: Statutory Provisions and Judicial Findings On Bigamy, Legal Service India.com,
(Apr.,03, 2020), http://www.legalserviceindia.com/legal/article-1864-bigamy-statutory-provisions-and-judicial-
findings-on-bigamy.html .

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